Marriage (Same Sex Couples)

Memorandum submitted by the United Reformed Church (MB 05)

MARRIAGE (SAME-SEX COUPLES) BILL

SUMMARY

The competent councils of the United Reformed Church have expressed no view on the general principle of the Bill and diverse convictions exist within the denomination. When the General Assembly next meets in 2014 it is possible that this may be left to local decision. In that event local churches opposed to same-sex marriage would certainly not be expected to facilitate it, but some local churches might wish to do so.

It is therefore in the URC’s interest that the legal framework for marriage formation allows voluntary religious groups who do not accept same-sex marriage and those who do to act accordingly, without either feeling under legal pressure.

The only true source of such pressure is equality law, and it is in equality legislation that this risk must be eradicated. I suggest that an expansion of the proposed new s.25A of the Equality Act would render the remainder of clause 2 unnecessary and prevent a possibly worrying interpretation of the term ‘compelled’. It is desirable that s.25A should also protect those who, under the trusts of religious buildings, are empowered to give directions to trustees.

As remarked at Second Reading, ‘Religious organisations should not be required to hold same-sex weddings, but neither, in the spirit of freedom of religion, should they prevent other religious organisations … from doing so.’ This evidence criticises the effective veto given in new provisions on jointly-used buildings (inserted by Schedule 1 into Marriage Act 1949), and suggests that such a veto should not be created in Regulations dealing with forces chapels under clause 6. Instead it suggests reliance on ‘rites-based control’ such as the Bill provides for elsewhere.

I suggest that confining the ‘conversion’ provisions of clause 9 to partnerships formed in England & Wales is unnecessary and will in some cases cause hardship.

I ask for s.44(1) of the Marriage Act to be updated with a reference to elders.

About my evidence

1. I am a non-practising Solicitor and an Elder in the United Reformed Church (URC). I was formerly a University Lecturer in Law, and remain actively engaged in research on the interaction of Law and Religion. I am Secretary to the URC’s Law and Polity Advisory Group.

2. I have been invited to give oral evidence to the Committee on 14th February. This cannot be literally ‘evidence of’, or even ‘given on behalf of’, the URC concerning the Bill, because no competent council of the URC has had time to consider it in detail since it was published at First Reading. Few bodies representative of the wider membership of any religious group can have met since then.

3. Instead I explain here why the URC does not have a single view on same-sex marriage and comment on how the Bill might affect our local churches if this were to become a matter for local decision. I have been authorised to do this by the General Secretary, our chief permanent officer at the denominational level.

4. Because some of what I have to say is background, and some goes into detail for which there may not be time at the Committee hearing, I felt it would be helpful to offer it first in the form of written evidence. I am happy to say more on these or other points if members so desire.

5. Since the marriage formation provisions of the Bill relate only to England and Wales, I say nothing here about the position of the URC in Scotland. A response authorised by our Synod of Scotland was made to the Scottish Government’s 2011 consultation on marriage and civil partnership reform, and they are now preparing a response to the further consultation on the Marriage and Civil Partnership (Scotland) Bill.

6. Neither should anything I say below be read as applying to the Church of England or the Church in Wales, their buildings or their rites.

The URC, same-sex relations and same-sex marriage

7. The URC has taken no position yet on same-sex marriage. Since the Church’s competent councils in England and Wales have expressed no view on the principle in Clause 1(1), I will not be expressing a view on this at the Committee hearing. The Church’s Law and Polity Advisory Group did, when responding to the Government consultation, support extending civil partnership to opposite-sex couples. This view accorded with a ‘principle of equality’ propounded in the Group’s submission on civil partnership formation on religious premises. But it was not discussed in church councils and I will not develop it here.

8. In any event the polity of the URC is not the same as that of (say) the Baptists, which is in principle congregational, nor as the centralist polity of Roman Catholicism. We have a General Assembly that 'embodies our unity', but also value subsidiarity: our constitution ascribes different decisions to councils at different levels of the Church, from the General Assembly to local Church Meetings.

9. Individual difference of view is also, up to a point, compatible with good standing in the URC. In the Basis of Union (the doctrinal part of our constitution) the Church states that it 'shall uphold the rights of personal conviction'; but goes on to say that 'It shall be for the church, in safeguarding the substance of the faith and maintaining the unity of the fellowship, to determine when these rights are asserted to the injury of its unity and peace.' The Church does not place a higher value on the rights of personal conviction than on the unity of the fellowship.

10. The URC has been conducting a wide-ranging discussion of views on the wider topic of same-sex relationships for nearly twenty years. In that time it has come to recognise the wide diversity of sincerely held views on the topic within its own membership. One powerful reason why it has made no official statement on the matter is to avoid the possibility of a split within the Church.

11. Nevertheless in 2007 the General Assembly formally recognised this diversity of views, and committed the Church, notwithstanding, 'to stay together, work and pray together [and] treat one another with respect'. Further, in relation to hosting civil partnership formation on URC premises, the General Assembly in 2012 agreed this to be a proper question for local church decision.

12. The question now facing the URC concerns the theological implications of a decision to change the legal definition of marriage to include two persons of the same sex. For some, accepting this change into the life of the Church would mean abandoning an understanding of marriage, based on complementarity and a connection with procreation, which the Judaeo-Christian tradition has maintained for millennia and which key documents of the URC’s predecessor traditions affirm. For others, it would mean expressing the essentials of that tradition in a new way, which takes account of the world as it is, the people to whom we minister and a modern understanding of sexuality.

13. It is possible, though far from certain, that the same attitude may be taken to same-sex marriage as was taken to civil partnership in 2012. If that should happen, it seems likely that a number of the URC’s local churches would wish to have their buildings registered for same-sex marriage and a number of Church members would wish to contract a same-sex marriage using a URC form of service.Though we cannot know this yet, we must be prepared for the possibility. The Bill is likely to become law before the General Assembly meets again in 2014, and it will be too late to alter the legislation to suit our needs then.

14. The interests of the URC thus require that the law should provide a framework for marriage formation within which religious groups who do not accept same-sex marriage AND religious groups who do may each act accordingly, without either feeling under legal pressure to change their convictions; and that it should be possible for different local decisions to be taken where a religious denomination’s internal polity so permits. [1] The greater part of this written evidence consists of my own conclusions on whether the Bill, as introduced, seems likely to achieve this. At para 30 I suggest additional security for churches opposed to same-sex marriage and at paras 23, 38 and 41 I warn of unwarranted impediments to those in favour. Suggestions at paras 18-19 and 45 would, I submit, benefit both categories. For length reasons I have not usually commented on provisions I find satisfactory.

Clause 2 of the Bill

15. I believe I understand the origin of this clause. Equality Act 2010 s.202 inserted into Civil Partnership Act 2004 a statement (s.6A(3A)) that ‘For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so’ (my italics). Similar wording is used in the draft Marriage and Civil Partnership (Scotland) Bill now out for consultation (at cl. 8(2)). I have had sight of an earlier draft of this Bill containing a provision that ‘No person or religious organisation may be compelled under this Act to do any protected act’. But at some point it must have been realised that, whether or not such a provision were included, nobody could be placed under obligations or compulsion by a purely permissive Act of Parliament. Hence the reference to ‘this Act’ was removed, leaving the words ‘A person may not be compelled’.

16. Unfortunately this may have gone too far in the opposite direction. From referring to the wrong Act, the clause has now been pruned so drastically as not to refer to the law at all. If clause 2(1) and (2) are retained the term ‘compelled’ needs appropriate qualification: clear reference to direct compulsion by the law. Otherwise the clause could threaten state interference in internal religious discipline or the exercise of powers under trusts. Neither is desirable.

17. If the word ‘compelled’ were left unqualified, it might be impossible for religious authorities effectively to direct trustees to apply for their building’s registration. This is a serious prospect, since it is only the power of Church Meetings to direct trustees as to the use of local church buildings for worship (URC Act 1972 Sch 2 Part I para 1(a)) which ensures URC local churches can use their own premises as they see fit.

18. What is necessary, therefore, is to remove the true danger of external compulsion at its source without resorting to general words that could interfere with the internal compulsion or discipline inseparable from religious trusts and church order. For voluntary religious organisations the source of that true danger lies in equality law. Save for equality law, nobody would imagine a permissive statute could impose obligations. Save for equality law, nobody could think that owners of buildings might be obliged to have them registered or to permit particular ceremonies in them. It is therefore in equality law that this danger must be addressed.

19. If the new Equality Act s.25A, inserted by cl.2(5) of the Bill, is expected to be foolproof – and I accept that it is, so far as any primary legislation can be – there is already no need for cl.2(2). If the new s.25A were expanded to cover the matters now in cl.2(1) (with the definitions in 2(3) and 2(4)), there would be no need for those sub-clauses either. My suggestion is therefore that cl.2 should consist only of the current sub-cl.(5), but that the new s.25A should be correspondingly expanded. (I make a further suggestion regarding s.25A below at para 30.)

Clauses 5 and 7 of the Bill

20. The new MA 1949 s.26B, introduced by clause 5, requires governing authority consent to marriage solemnization by religious rites or usages outside a registered building. Only s-ss. (1), (6) and (7) can concern the URC. [2] Sub-sections (6) and (7) introduce into the law regarding marriages of the detained and housebound a new requirement, namely that the ‘governing authority’ of the religious organisation whose rites are used must consent to their use. Clause 7 of the Bill affects marriages of the terminally-ill similarly.

21. Such a provision is not entirely novel. Sharing of Church Buildings Act 1969 Sch 1 para 6 already requires denominational consent to a marriage by particular rites in a building subject to a sharing agreement. Admittedly this has most meaning for those religious traditions, such as the Roman Catholic, whose marriage liturgy is distinctive and centrally-prescribed. The URC merely commends, rather than requiring, liturgical forms for worship. Nevertheless I have no serious criticism of the ‘rites-based’ approach of s.26B(6), and will suggest at paras 24 and 42 below that it may be preferable to ‘building-based’ control.

Clause 6 of the Bill

22. Rites of the Church of England aside, the main effect of this clause is to allow (by a new MA 1949 s.70A) the possibility of armed forces chapels being registered for same-sex marriage. The detail, however, is deferred to Regulations, and in particular its is envisaged in s.70A(6)(c) that these may provide for consents before registration is sought.

23. Forces chapels are provided by the Crown and not by religious bodies. They are neither consecrated (in the legal sense) for the worship of the Church of England nor held on trust for other religious traditions. They are a public provision for the welfare of the service community, even though the chaplains who minister in them also serve their denominations’ own mission. I see no compelling basis on which one such denomination should be entitled to hinder the way in which others use them. I am concerned, therefore, at the reference to consents, given that a right to ‘consent’ to registration is effectively a power of veto (see also paras 34 and 36 below). Should the URC – or any other Christian group whose adherents serve in the armed forces – wish, at some future date, to allow same-sex marriage under its auspices, a ‘consent to registration’ requirement might easily mean that no forces chapel is available. I suggest there should be no such requirement.

24. Registering a forces chapel for same-sex marriage would not compel religious groups opposed to such marriages to solemnize them. But if they felt their own internal discipline insufficient to prevent ‘maverick’ chaplains solemnizing unions of which they could not approve, their position could be protected by a ‘rites-based approach’ similar to that in the new s.26B(6) (see para 20 above).

Clause 9 of the Bill

25. The procedure for which this clause provides has not been discussed in the URC and I can only express a personal view. But I commend the approach of the Marriage and Civil Partnership (Scotland) Bill, under which civil partners will become married only by one of the legal forms of solemnization, with the same choice of forms and the same religious safeguards as for any other couple, but with the difference that their existing civil partnership is not considered an impediment to the marriage. As in the Bill before the Committee, solemnization will dissolve the partnership but its material consequences will be back-dated to when the partnership began.

26. I have a serious concern, though, about clause 9 being confined to partnerships formed in England and Wales. This is a pastoral concern for the hardship threatened to couples who move permanently to England or Wales after forming a partnership elsewhere. This would be avoided if the qualification in cl.9(1) related to domicile, not place of formation. Domicile is already a basis on which a partnership formed elsewhere may be dissolved by the English courts (CPA 2004 s.221(1)(b)): why then should such a partnership not be dissolved in England by the operation of law? English law will anyhow govern the couple’s capacity to enter the new marriage.

27. If such a change were not made, the relocating couple could be denied the benefit of ‘conversion’ altogether. It might not be practical to return to their former jurisdiction to have the partnership dissolved there. They could not have it judicially dissolved here without proving it had irretrievably broken down (CPA 2004 s.169(1) and (4)): but how could a couple, known to be intending to marry, ever show that? Yet without a dissolution the partnership would prevent their marriage (Matrimonial Causes Act 1973 s.11(b)).

Schedule 1 to the Bill - buildings in single-denominational use

28. The new MA 1949 ss. 43A-43D inserted by this Schedule allow registration of buildings in single-denominational use for same-sex marriage, and appointment of ‘authorised persons’ (separate from those appointed for opposite-sex marriage). They differ from existing opposite-sex provisions only in the need for ‘governing authority’ consent (s.43A(3)), the possibility of cancellation on request (s.43C) and the possibility of further provision in Regulations (s.43D).

29. I am satisfied ‘governing authority’ consent allows for an appropriate degree of denominational control. But in the URC it may become necessary to ensure that local church control is also a reality, and free from external pressure (see paras 8, 13 and 14 above). At present local church control over registration of a building for marriages exists through the need for the trustees for each local church to apply (MA 1949 s.41(1)), coupled with the ability of the Church Meeting to direct those trustees in matters concerned with public worship (URCA 1972 Sch 1 Part I para 1).

30. It would be reassuring if the new EA 2010 s.25A added to the list of those protected against discrimination claims those who, under the trusts of any building, are entitled to give directions to trustees but choose not to direct an application to be made in relation to same-sex marriage.

31. Subject to this, the new ss.43A and 43B are acceptable. Since same-sex marriage is a new concept for all religious bodies, whose insights may mature over time, it is possible that some who initially approve it may change their views and seek to withdraw from offering it under their auspices. That justifies the cancellation provision in s.43C, at least for the present.

32. It is not clear why a power to make further provision by Regulations (s.43D) is necessary. Aside from fees, there is nothing in the law on registration for opposite-sex marriage for which the Bill does not already make corresponding provision. There is concern in the URC that the unfortunate precedent of the Marriage and Civil Partnership (Approved Premises)(Amendment) Regulations 2011 might be followed, under which religious venues already hosting marriages have to satisfy a raft of novel requirements before they can host civil partnership formation and in some cases pay fees of £2000 for 3 years’ approval, when permanent registration for marriages costs £120 (MA 1949 s41(6)).

Schedule 1 to the Bill - buildings in joint use

33. The new MA 1949 ss. 44A-44D inserted by this Schedule allow registration of buildings in joint use for same-sex marriage. Three categories of building are distinguished:

(a) those subject to a sharing agreement under Sharing of Church Buildings Act 1969 [s.44(1)(a)];

(b) ‘a chapel of any university, college, school, hospital or other public or charitable institution, or a building held on trust for purposes of public worship but not a church building to which a sharing agreement relates, … used for the purposes of public worship in accordance with the forms of service and practice of two or more Churches to which [the 1969 Act] applies’ [s.44A(1)(b) and SCBA s.6(4)]; and

(c) ‘other shared buildings’ [s.44C].

34. New ss. 44A-44B treat categories (a) and (b) together, making buildings in both categories subject to an effective veto on registration for same-sex marriage by the governing authority of any religious organisation using the building. Category (c) is treated separately in s.44C, provision being deferred to Regulations.

35. The distinction between ‘consent to use’ and ‘consent to same-sex marriage’ is an improvement on the non-specific consent language used in an earlier draft of the Bill. It enables a religious group which is opposed to same-sex marriage, but uses a building belonging to a group supportive of same-sex marriage, to free the owning group to have the building registered, whilst maintaining its own principled opposition.

36. But why should that freedom not be a matter of course? Under these provisions the opposed group could still refuse ‘consent to use’. Even if it gave such consent, it could at any time cause the building’s registration to be cancelled. The justification for this effective veto is doubtful in the case of buildings in category (a) and non-existent in the case of categories (b) and (c) – above all if it takes the form of cancellation after same-sex marriage has become a familiar part of the host congregation’s life.

37. There is an initial uncertainty caused by the non-definition of ‘religious organisation’. Is a Gospel choir, a Torah school, an Islamic student society, within these sections? But even if they are not, there are many situations causing buildings to be in joint use. Category (b) above could cover occasional use on payment, multidenominational institutional chapels or rent-free ecumenical hospitality (offered because another group cannot afford its own premises or because those premises were being renovated). The legitimate expectation of a ‘guest church’ to be able to veto the activities of its ‘host’ or of a ‘fellow-guest’ is tenuous at best.

38. The claim to a veto is strongest when churches have committed themselves formally to co-operation and joint activity in a single building, perhaps each contributing financially. I do not therefore resist the veto in category (a) (buildings subject to a formal sharing agreement). But such an agreement itself gives scope for the matter of same-sex marriage to be negotiated and provided for, when the agreement is made or renewed. It would be logical for the requirements of s.44A(6) to be subject to contrary provision in a sharing agreement.

39. In other cases I suggest there is no compelling claim to a veto. By providing for it in category (b) buildings the law would allow guest religious groups to restrict the ability of their hosts to act upon their own convictions. It would stop institutional governing bodies making chapels available for a full range of services to the institution’s members or users. Similar provisions in the Regulations governing civil partnership on religious premises have already caused considerable difficulty to local churches of the URC. My point was succinctly made by the Rt Hon Yvette Cooper at Second Reading (Hansard, 5th February col.140): ‘Religious organisations should not be required to hold same-sex weddings, but neither, in the spirit of freedom of religion, should they prevent other religious organisations or the state from doing so.’

40. In relation to marriage the URC could be uniquely affected by this question. Of the traditions known to be favourably disposed to same-sex marriage, Jews and Quakers do not use registered buildings and I believe Unitarians hardly ever share theirs. Metropolitan Community Churches do share the buildings of others, but more often as guests than hosts.

41. Ideally I should like to see all special provision for what I have called category (b) and (c) buildings removed from the Bill. Failing that, category (b) should be grouped with category (c) and left to Regulations; but before such Regulations are made the responsible Minister should consult multilaterally, not bilaterally, so that the churches affected can share concerns openly with each other and with Government.

42. However, I recognise that opposed religious groups whose congregations worshipped in buildings registered for same-sex marriages would not wish to find their position undermined. Registration alone would not compel those congregations to host such marriages or be associated with them; but if a denomination felt its internal discipline insufficient to prevent its congregations or ‘maverick’ ministers celebrating unions in that building of which it could not approve, a ‘rites-based approach’ similar to that taken by the new s.26B(6) would adequately protect its position. (See para 20 above)

Schedule 7 to the Bill

43. Some of the amendments made by this Schedule affect the URC, but most follow logically from other provisions. Clarification would be welcomed on what ‘evidence relating to a governing authority consent’ might be required under new MA 1949 s.28A(1A), given that the consent itself would already have been produced under s.27D(2).

Consent under Marriage Act 1949 s.44(1)(proviso)

44. Before marriage can take place in a registered building, the proviso to MA 1949 s.44(1) requires the consent of the minister or one of the ‘trustees, deacons or managers’ of the building. This is not altered by the Bill and so will in future apply to all marriages. If governing authority consent is given to registration of URC buildings for same-sex marriage, therefore, this additional consent will still be required to specific ceremonies.

45. However, the proviso has not been updated since 1858, when every church had a minister, trustees were local individuals and the Presbyterian Church in England called office-bearers managers or deacons. Today, buildings of the URC are often vested in corporate trustees based far from the locality; many churches face long vacancies without a minister; and our tradition no longer speaks of ‘deacons’ and ‘managers’. This control mechanism would be much easier to operate if the Bill inserted ‘elders’ alongside the other church officers named.

February 2013


[1] It should be said that there are some who, whilst appreciating the Government's efforts to provide all the legal guarantees possible in a Bill framed as a series of amendments to the 1949 Act, would have preferred a more radical approach to the whole question, re-examining the assumptions on which the MA 1836 was based and setting out a new law for 21st-century England and Wales which might separate the legal basis for marriages from the actions in relation to marriage of all religious bodies without exception.

[2] I note in passing that s-ss. (2)-(5) perpetuate a distinction between voluntary religious groups. Its origin lies in conditions of 1753 and 1836 which no longer apply. Many of the difficulties I outline later in this evidence would not arise if members of religious groups alternative to the Church of England shared the facility of Jews and Quakers to contract marriage wherever they wished.

Prepared 20th February 2013